Air Products and Chemicals, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1982

263 N.L.R.B. 341 (N.L.R.B. 1982)

AIR PRODUCTS AND CHEMICALS, INC.
Air Products and Chemicals, Inc. and Chauffeurs,
Teamsters & Helpers Local Union No. 391, af-
filiated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases l-CA-9420, 11-
CA-9615, and 11-RC-4907
August 12, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On November 23, 1981, Administrative Law
Judge Hutton S. Brandon issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Productsr
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In so concluding, we reject Respondent's contention that the Adminis-
trative Law Judge relied solely on Haney's status as an employee of Re-
spondent in assessing his credibility. It is generally true that the testimony
of an employee against the interest of the employer is considered espe-
cially worthy of belief since it is unlikely that the employee would
engage in fabrication. Pittsburgh Press Company, 252 NLRB 500, 504
(1980). The existence of an employer-employee relationship is, however,
merely one factor to be considered in determining credibility. In the
present case, the Administrative Law Judge relied on more than Haney's
status as an employee in crediting his testimony. Indeed, Haney's testimo-
ny about Respondent's antiunion conduct during an earlier organizing
campaign is uncontradicted in all material respects, and thus clearly es-
tablishes Respondent's hostile opposition to the Union's organizing efforts
in the instant campaign. Similarly, Haney testified without contradiction
that Personnel Manager Mifeton threatened that union activist Wilson
would be discharged, and that Mimeton on two occasions threatened
that if the plant became unionized it would be one of the first to be shut
down in the event of a production cutback. Miffleton did contradict
Haney's testimony that Mimeton interrogated him about union activity.
But Mimeton's denials were not corroborated by the only other witness
to this conversation, Plant Manager Bruno. The Administrative Law
Judge properly found Bruno's failure to testify to be the basis for an ad-
verse inference against Respondent, which the Administrative Law Judge
in turn relied on in crediting Haney over Mimeton in this regard. Haney
also testified that Terminal Manager Lake threatened that the plant
would be shut down if the Union's organizing campaign were successful.
While Lake did specifically deny making such a threat, the Administra-
tive Law Judge discredited those denials on the basis of a careful assess-
ment, in light of the relevant surrounding circumstances, of the plausibil-
ity of Haney's version. We find no reason to overturn the Administrative
Law Judge's assessment of the facts in support of his credibility resolu-
tion in this regard. Much of the rest of Haney's testimony forming the
basis for the Administrative Law Judge's unfair labor practice findings is
not specifically denied by Respondent witnesses. Further, the portions
where Haney's testimony was vague dealt with dates of certain occur-
rences, hardly surprising in light of the lapse of time between Haney's
testimony and the events in question, and also in light of the numerous
dealings Haney had with Respondent both before and during the 1980
263 NLRB No. 45
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
We are mindful of the fact that the Board's order
in Apple Tree Chevrolet, Inc., 237 NLRB 867 (1978),
remanded 608 F.2d 988 (4th Cir. 1979), supplemen-
tal decision 251 NLRB 666 (1980), a case cited by
the Administrative Law Judge, was recently denied
enforcement. N.L.R.B. v. Apple Tree Chevrolet,
Inc., 671 F.2d 838 (4th Cir. 1982). The Administra-
tive Law Judge cited Apple Tree only for the broad
principle that the discharge of union adherents by
an employer in the midst of a representative cam-
paign will strongly support the imposition of a bar-
gaining order.
We agree with the findings and analysis of Ad-
ministrative Law Judge Brandon, which were, in
our opinion, specific and detailed. The Administra-
tive Law Judge precisely set out the nature of the
Respondent's unfair labor practices and the result-
ing dissipation in the Union's majority status, as is
evident from the discrepancy in the number of em-
ployees who signed authorization cards and the
number who ultimately voted for union representa-
tion.
Furthermore, Respondent's coercive conduct
was not sporadic, but continuous in nature, lasting
up until the day of the election. For example,
among other instances of unlawful conduct, Re-
spondent, on more than one occasion, threatened to
close down the plant. As found by the Administra-
tive Law Judge, a threat to close a facility is one
of the most pernicious acts that an employer can
practice in an effort to interfere with employees'
Section 7 rights. Because of the steady unlawful
pressure exerted on employees, including the
threatened discharge of a leading union supporter,
and the nature of Respondent's unfair labor prac-
tices, we agree with the Administrative Law Judge
that a cease-and-desist order would, under the cir-
cumstances, be insufficient to remedy Respondent's
misconduct. 2
representational campaign. We therefore conclude that the Administra-
tive Law Judge's credibility resolutions with respect to Haney are both
self-supported and consistent with the preponderance of all of the rele-
vant evidence.
Chairman Van de Water agrees with the Administrative Law Judge
that the interrogation of Robert Wilson in the context of this case was
violative of Sec. 8(aXI), but finds it unnecessary to rely on PPG Indus-
tries, Inc.. 251 NLRB 1146 (1980).
2 In addressing another area of concern to the court in Apple Tree, we
emphasize that the Board has long held that employee turnover will not
warrant withholding a bargaining order, since to do so would reward an
employer for its unfair labor practices during a representational cam-
paign. Highland Plastics. Inc. 256 NLRB 146 (1981). However, even as-
suming, arguendo, that the degree of employee turnover should be con-
sidered in assessing the propriety of a bargaining order, there is no indi-
cation in the present case, unlike Apple Tree, that subsequent to Respond-
ent's unfair labor practices, and as of the time of filing briefs before the
Board, there has been any significant degree of employee turnover.
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Air Products
and Chemicals, Inc., Reidsville, North Carolina, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge:
This case was heard at Winston-Salem, North Carolina,
on July 27 and 28, 1981. The charge was filed in Case
11-CA-9420 by Chauffeurs, Teamsters & Helpers Local
Union No. 391, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union, on Septem-
ber 22, 1980.1 A complaint based upon the charge and
alleging violations of Section 8(aX1) and (5) of the Na-
tional Labor Relations Act, as amended, herein called
the Act, by Air Products and Chemicals, Inc., herein
called the Respondent or Company, issued on November
6. Following the filing of a petition for election by the
Union, Case 11l-RC-4907, an election was held among
certain employees of the Respondent on September 16.
Subsequently, the Union filed timely objections to the
election on September 22 and the Acting Regional Di-
rector for Region 11 of the National Labor Relations
Board, herein referred to as the Board, on October 30
issued his report on objections recommending that cer-
tain of the objections be overruled and that a hearing be
scheduled with respect to the remaining objections
which were coextensive with the alleged unfair labor
practices. On November 20, the Board issued its order
adopting the Acting Regional Director's recommenda-
tion and on January 15, 1981, the Acting Regional Di-
rector issued an order consolidating the representation
case with Case 11-CA-9420 for hearing. In the mean-
time, on December 29, the Union filed an additional
charge, Case I l1-CA-9615, which resulted in a second
order consolidating cases, a consolidated complaint and
notice of hearing which issued on March 4, 1981. .
The issues in this case are whether the Respondent en-
gaged in various acts of interference, restraint, and coer-
cion as alleged in the complaint to block the Union's or-
ganization efforts. Also at issue is whether a bargaining
order is warranted under the principles enunciated in
N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969),
and, in the alternative, whether the Union's objections to
the election should be sustained.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel, the Re-
spondent, and the Union, I make the following:
I All dates are in 1980 unless otherwise stated.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with a
plant located at Reidsville, North Carolina, where it is
engaged in the manufacture and distribution of industrial
gases and chemicals. During the 12 months preceding is-
suance of the original complaint, the Respondent re-
ceived in its Reidsville plant goods and raw materials
valued in excess of $50,000 directly from points located
outside the State of North Carolina, and during the same
period of time, manufactured and shipped from its Reids-
ville plant products valued in excess of $50,000 directly
to points outside North Carolina. The Respondent
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act. The Respondent further admits, and I find, that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union began its organizational campaign in early
July through the efforts of employee and truckdriver
Robert Wilson. Wilson signed a union authorization card
on July 4 and within the next 3 weeks secured a number
of signatures of fellow employees on union cards. Wil-
son's efforts on behalf of the Union was not the Union's
first attempt to organize the Respondent's employees.
There were two prior union campaigns, one shortly after
the Respondent began operations in Reidsville in 1978,
and the second one which culminated in the filing of a
petition with the Board, Case I l-RC-4650, on January
31, 1979.
The record reveals little about the first organizational
effort, but with respect to the second campaign employ-
ee Roger Lee Haney testified that approximately 6
months after plant operations were initiated, he was ad-
vised by Gene Desnouee, a line operations manager for
the Respondent at the time, that the Respondent had re-
ceived a letter from the Union informing it that Haney
had joined the Union's in-plant organizing committee and
was in the process of organizing for the Union. Des-
nouee made the announcement to Haney in the presence
of Vincent Kraft, the Respondent's industrial relations
manager, Ron Bruno, the assistant plant manager, Stan
Miffleton, the Respondent's regional personnel manager,
and James Blair, the Respondent's plant manager, after
having called Haney into the office. Desnouee asked, ac-
cording to Haney, "What is this in-plant organizing?"
Haney described the efforts to organize the Union.
Haney then testified as follows regarding the response of
Kraft:
[W]e're not going to recognize anything on this, it's
asking for recognition, I'm not going to write him
[R. W. Brown, the union representative] back a
letter or anything .... [W]e're going to sit down,
we're going to wipe the slate clean and negotiate
from scratch, benefits and all, we're going to wipe
342
AIR PRODUCTS AND CHEMICALS. INC.
the slate clean. You'll become my adversary and I'll
fight you tooth and nail.
There was some further conversation in which Haney
in response to a question by Desnouee of what "the
problem was" explained that the employees felt that the
Respondent had lied to them regarding promised salary
increases which did not materialize. In any event, after
some apparent further discussion, Haney suggested that
maybe he should "withdraw this thing." Blair replied
that, if he did have any problems with the "guys" with
respect to the withdrawal, the Respondent could do
Haney like they did another guy with the same problem,
promote him to an assistant manager so that the boys
would not give him any problems. The next day, accord-
ing to Haney, Blair typed a petition that was addressed
to the Board and to the union representative, R. W.
Brown. This petition was to the effect that the employ-
ees did not wish to be represented by the Union and de-
clared all cards invalid. Haney, a shift supervisor, 2 ob-
tained the signatures of the people in his department on
the petition on the day it was prepared and was then ad-
vised by then Terminal Manager Bob Dudley that he
would like for the drivers to have an opportunity to sign
the petition also. Haney complied with that request and
took the petition to the breakroom for the drivers. The
petition was subsequently forwarded to the Board and
the Union. The representation petition was withdrawn
and the union organization efforts ceased at that time.
Subsequently, still according to Haney, about a month
later, around September 1978,3 he was told by Bruno
that, if the employees had not withdrawn the union orga-
nizational effort, the Respondent was going to shut the
plant down and lay everyone off, and then after 3 or 4
months the operation would begin with a whole new
crew.
The Respondent provided little evidence regarding the
above conduct attributed to it by Haney. Desnouee,
Kraft, and Bruno did not testify in this proceeding.
While MiMeton testified, he did not specifically contra-
dict Haney's testimony regarding the meeting with Kraft,
Desnouee, and Blair and the remarks made at that meet-
ing. Blair denied, however, any involvement in author-
ing, typing, or supporting a "counter-petition" against
the union campaign.
Haney was clearly an individual who, as will be seen
below, attempted to play both ends against the middle
with respect to both the earlier union campaign and the
subsequent campaign which is the subject of this hearing.
In demeanor he was not greatly impressive and portions
of his testimony were vague, confusing, and occasionally
contradictory. As already indicated, his recollection with
respect to the timing of certain events was not reliable.
2 While Haney's title suggests supervisory status, there is no contention
that he was a supervisor within the meaning of Sec. 2(11) of the Act.
Haney's function involved equipment supervision rather than employee
supervision.
3 Since it is clear the Union's petition was filed on January 31, 1979,
Haney's testimony placing the withdrawal efforts and Bruno's subsequent
remarks in 1978 is obviously in error. The petition, based on a letter from
the Regional Director to the Respondent (Resp. Exh. 7), was withdrawn
on February 14, 1979, so it is likely, and I conclude, that Bruno's remark
took place within the month following February 14, 1979.
Based on the substance of Haney's testimony and from
his demeanor, I am convinced that he is an individual
who is motivated by extreme self-interest, yet it is this
extreme self-interest which enhances his credibility for
Haney's testimony herein was clearly against his self-in-
terest. Since he remained an employee of the Respondent
at the time of his testimony he was subject to possible
economic retaliation. See Victor Wukits d/b/a Vic's Shop
'NI Save, 215 NLRB 28 (1974); Georgia Rug Mill, 131
NLRB 1304, 1305 (1961), modified on other grounds 308
F.2d 89 (5th Cir. 1962). I would thus credit Haney's tes-
timony where not specifically contradicted by more per-
suasive direct, circumstantial, or testimonial evidence.
Here, in the absence of denials of the above remarks he
attributed to Desnouee, Kraft, Bruno, and Blair, I credit
Haney regarding such remarks. Moreover, since Blair
failed to testify regarding the meeting between Des-
nouee, Mimeton, Bruno, himself, and Haney when
Haney mentioned a petition withdrawing from the
Union, I find Blair's denials of involvement with the peti-
tion unconvincing. I therefore credit Haney's testimony
in this regard also.
While no finding of a violation of the Act may be pre-
mised upon the Respondent's conduct during the 1979
union campaign, I find that such conduct clearly demon-
strates the Respondent's extreme hostility toward union
organization of its employees. 4 Further, the evidence
submitted by the General Counsel in support of the alle-
gations of the instant cases must be considered and eval-
uated in light of this background.
B. The Alleged 8(a)(1) Violations
I. Further testimony of Haney
By letter dated July 3, Union Organizer R. W. Brown
informed the Respondent that it was in the process of or-
ganizing Respondent's plant and identified Robert
Wilson as having joined the in-plant organizing commit-
tee. Haney testified that he had learned from Wilson that
the letter regarding the in-plant organizing committee
was "on its way." Upon learning this, and after giving
the Respondent reasonable time to receive the letter,"
Haney telephoned Blair at his home and advised him that
Wilson was organizing the Union. Haney disavowed any
personal involvement in the union activity. Haney fur-
ther advised Blair that he was not informing him to get
favors or promotions but that he just wanted Blair to
know. Blair, according to Haney, told Haney to "keep
me posted." Blair did not specifically deny receipt of the
telephone call from Haney or the remarks attributed to
him therein by Haney. He testified, however, that he was
4 The fact that the Respondent, as related in the testimony of Mime.
ton, has over 40 labor agreements covering some 2,400 employees at var.
ious locations does not preclude the existence of hostility, which I find
here, toward further union organization of its employees.
I While Haney would have me believe he called Blair not to advise
him of the union campaign but only to disavow his involvement in it, I
do not credit this portion of his testimony. Haney specifically testified he
called Blair on a Saturday night, prior to a subsequent conversation with
Mimeton on July 10. This would have put the call to Blair on Saturday,
July 5. Since the letter was not mailed until July 3 and since July 4 was a
national holiday, Haney gave the Respondent little time to receive the
letter before he telephoned Blair.
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of town from July 6 until July 19 and did not learn
of the union activity until his return. I note first that
Blair's absence from the plant after July 6 would not
have precluded Haney's telephone call to him on July 5.
In addition, I found Blair's denial of knowledge of union
activity prior to July 19 to be unconvincing. Blair, in
general, was too ready to deny any opposition to the
Union to be persuasive in his testimony. Moreover,
Blair's claim that the Respondent did not oppose union
organization was contradicted by other witnesses who
frankly conceded that the Respondent was opposed to
organization. I therefore credit Haney on the call to
Blair and the contents of the conversation therein.
On July 10, Miffmeton, according to Haney, called
Haney into Blair's office and, in the presence of Bruno,
Miffieton referred to the union letter regarding the in-
plant organizing committee and asked him if he knew
anything about it. Haney replied that he had suspected it.
When Mimeton asked if he had seen union cards, Haney
replied negatively. Miffleton asked Haney how many
cards he thought they had gotten signed and Haney re-
plied that he did not know. Miffleton then responded
that if Haney found out to let him know.
Mimeton, called by the Respondent, testified the Re-
spondent received the Union's July 3 letter on July 7, 8,
or 9, and while he conceded he may have talked to
Haney on one of those days rather than July 10, he
claimed he did not ask Haney if Haney had seen any
union cards, nor did he ask Haney about the union activ-
ities of anyone else. Rather, he testified Haney ap-
proached him and advised him that Wilson was attempt-
ing to recruit people to sign union cards. Moreover, he
testified that Haney added that he had told MiffMeton
that if it were his decision he would have fired Wilson
long ago.
I have no doubt, in view of Haney's earlier telephone
call to Blair, that Haney probably approached Miffleton
first with the information about Wilson and the Union.
Nevertheless, I am not persuaded that Miffleton's testi-
mony was altogether accurate and I find that his denial
of any questions to Haney was unconvincing. Clearly
Haney was volunteering information on union activity.
Since Haney had been a source of information in the ear-
lier campaign it would not be improbable that Miffleton
would ask Haney the questions Haney attributed to him.
Moreover, there was no denial of Haney's testimony by
another Respondent official, Bruno, whose absence from
the hearing was not explained by the Respondent. In
view of Bruno's failure by the Respondent, I infer that
had Bruno testified his testimony would not have sup-
ported the Respondent's position. See Ingram Farms,
Inc., 258 NLRB 1051 (1981). Accordingly, I credit
Haney's testimony and find that Miffleton did question
Haney, as alleged in the complaint, about the union ac-
tivities, sympathies, and support of its employees. The
Respondent thereby violated Section 8(a)(1) of the Act.
6
6 I conclude that Haney was probably at that time eager to supply the
Respondent with information regarding the Union. It is difficult therefore
to perceive how the interrogation was coercive as to him, subjectively.
However, the Board has long held that, in judging "whether a statement
violates Section 8(a)(1), the Board assesses the tendency of the statement
Since this conduct occurred prior to the filing of the rep-
resentation case in Case 11 -RC-4907 it cannot be consid-
ered as a basis for objections to the election. Sanitas
Cura, Inc., d/b/a Parkview Acres Convalescent Center, 255
NLRB 1164 (1981); Apple Tree Chevrolet, Inc., 237
NLRB 867 (1978), enfd. in part 608 F.2d 988 (4th Cir.
1979).
Haney related that he again talked to Miffieton in mid-
July in the laboratory next to the control room at the
plant. Miffleton, to Haney's recollection, initiated the
conversation regarding the Union, and Haney asked
what was going to happen to Wilson. Miffleton replied,
"Roger, let's face it, he's gone." During the same discus-
sion Miffieton referred to the Respondent's Sparrow
Point, Maryland, plant where employees had struck for 9
months, and the Camden, New Jersey, plant where there
had been a 6-month strike. Miffieton said a strike at
Reidsville would not be a 1-week strike or a 6-month
strike but, rather, it would last for 9 months to a year
and "you can't afford to walk a picket line." There was
also discussion by Mimeton about the Respondent's New
Orleans facility which was somewhat larger than the
Sparrow Point facility. Miffleton advised Haney that
New Orleans was being phased out from 60 employees
down to 28 employees. They discussed the economics of
plant operation and Miffleton told Haney, still according
to Haney, that the Respondent was trying to sell the po-
lyvinylchloride (PVC) part of its business because of
marginal profits. Miffleton added that the Respondent
had to look at all of its plants and that, if they were
going to start cutting, naturally they would cut the union
plants first.
In response to Haney's testimony in the foregoing re-
spects, Mifeton denied that he was even at the Re-
spondent's plant between July 9 and 22. He did admit,
however, that he was there on July 22, 23, and 24. More-
over, he admitted to having a conversation with Haney
in which he discussed other of the Respondent's plants
including the Camden, New Jersey, plant and the New
Orleans facility, where, in the spring of 1980, there was a
work stoppage. 7 He denied, however, any questions by
Haney about Sparrow Point. He also admitted discussing
with Haney the Respondent's "divestiture" of its PVC
business. He did not specifically otherwise deny the com-
ments and statements attributed to him by Haney in the
conversation. Accordingly, and although I believe the
date of the conversation was on or within a day or two
to coerce or restrain employees in the exercise of Section 7 rights." Truck
Stations Inc., d/b/a Woody's Truck Slops, 258 NLRB 705 (1981).
7 According to Terminal Manager Roy Lake, the strike at New Or-
leans involved driver employees of a leasing firm used to haul the Re-
spondent's products. The length of the strike was not established in the
record but Lake claimed that it was concluded by the Respondent doing
away with the leasing firm and hiring the drivers after which it recog-
nized the union representing the drivers and signed a collective-bargain-
ing agreement. If this were true it would hardly provide a basis for
threatening employees herein unless the Respondent was emphasizing the
effect of the work stoppage on its facility and the impact on the leasing
firm which may well have been abolished. Regardless of the actual facts
surrounding the New Orleans situation, the testimony of Haney and
others, above and infra, regarding references to New Orleans by the Re-
spondent's representatives clearly reveals the Respondent was not using
New Orleans to promote the Union's effort.
344
AIR PRODUCTS AND CHEMICALS. INC.
after July 22 in keeping with Miffieton's more likely reli-
able business calendar, I credit Haney regarding Mime-
ton's comments and conclude that by such comments the
Respondent, as alleged in the complaint, threatened em-
ployees with plant closure because of their union activi-
ties, threatened the discharge of Wilson for union activi-
ties, and threatened that a lengthy strike would occur if
employees selected the Union, all in violation of Section
8(a)(1) of the Act. Such violations, occurring after the
filing of the petition, a fortiori, constitute objectionable
conduct. Dal-Tex Optical Company, Inc., 137 NLRB 1782
(1962).
It was Haney's testimony that also in mid-July he had
a conversation with Roy Lake, the Respondent's termi-
nal manager who had come into the control room where
Haney was working. Haney testified he asked Lake how
the union thing was going and Lake's response was a
question, "You're not involved in that are you, Roger?"
Haney replied that he was not.8 Lake then stated, "No
goddamn union's going to come in here and intimidate
me or the company, I've worked union's and strikes
before, truck drivers are a dime a dozen, a bunch of no-
bodies and they can do what I say or they can hit the
gate." Lake added "We'll shut this plant down and we'll
get the liquid from other plants, we don't need it."
While Lake in his testimony for the Respondent ad-
mitted that he had talked to at least half of the Reidsville
employees about the Union, he denied that he had talked
to Haney about the Union and specifically denied asking
him if he was involved in the Union. I found Lake's de-
nials unimpressive. I am not convinced that Haney fabri-
cated an entire conversation. Moreover, the occurrence
of the conversation and the content of the conversation
have a certain ring of truth, and certainly are not wholly
unreasonable. When the Union sought recognition and
when it filed its representation case petition it sought to
represent only truckdrivers, thereby excluding Haney
and the remaining nondriver employees. It would not be
unreasonable for Lake to inquire of an employee outside
the unit in which employees were known to be organiz-
ing "you're not involved ... are you?" Nor is it incredi-
ble that Lake would tell an employee not within the unit
sought by the Union at the time what he thought about
the organizational efforts of the truckdrivers. I therefore
credit Haney regarding Lake's inquiry and find that the
Respondent through Lake unlawfully interrogated an
employee regarding his union involvement in violation of
Section 8(a)(l) as alleged in the complaint. The com-
plaint alleges no further violation of the Act based upon
Lake's comments to Haney nor does the General Coun-
sel's brief argue any further specific violation. It is clear,
however, that Lake's additional remarks to Haney were
an integral part of their conversation. I deem the matter
fully litigated with the Respondent having had the op-
portunity to rebut the General Counsel's evidence so that
the legality of Lake's additional remarks may be decided.
See Woody's Truck Stops, supra. I find, therefore, that by
the additional remarks Lake impliedly threatened that
the plant would be closed in the event of employee orga-
nization and a subsequent strike. By this statement the
Haney did not sign a union authorization card until July 19.
Respondent, I find, further violated Section 8(aX1) of the
Act.
Haney recalled a conversation that he had had with
Plant Manager Blair which he placed in the last of
August or the first of September. While he could not
recall who initiated the conversation, he recalled that
Blair told him that he had better receive six no votes in
the election. Haney replied that he did not believe he
would receive six no votes and expressed the belief that
he would only get five.9 Blair added that it could get
awful hot around there, that the good guys wear the
white hats and the "SOB's are outside the fence." Haney
asked if he was calling Haney an SOB if he voted for the
Teamsters and Blair replied that he could be a nice guy
or he could be an all-American SOB. Nevertheless,
Haney replied that he did not believe that Blair would
get six no-votes. Haney initially testified that Blair re-
sponded "then get me a list." On cross-examination,
however, Haney indicated Blair did not ask for the list.
Nevertheless, Haney made up a list of voters which he
gave to Blair showing that the Company would receive
13 votes and the Union 11 votes. The list was based on
Haney's opinion after listening to conversations of var-
ious employees.
Blair, in his testimony, denied that he was at the plant
during the last week of August through September I. He
admitted, however, that following his return to the plant
on July 19 after a trip to Brazil, he did have a conversa-
tion with Haney which was initiated by Haney. Blair
made no attempt to describe the content of the conversa-
tion but verified that Haney, without solicitation from
Blair, gave Blair a list of employees and their probable
voting inclinations with respect to the union election.
Blair did not specifically deny the remarks attributed to
him by Haney.
Haney, from all the evidence in the record, was quite
clearly eager to please the Respondent and provide
union activity information. Because of this, and because
of his equivocation about whether Blair specifically
asked him for the employee list, I do not believe Haney's
claim that Blair specifically asked Haney for the list. I do
not, therefore, find merit to the complaint allegation that
the Respondent required an employee to provide it with
a list showing voting preferences with respect to the
Union. On the other hand, in the absence of specific de-
nials by Blair regarding the other comments attributed to
him by Haney in the conversation I credit Haney that
the remarks were made. I thus conclude that the com-
plaint allegation that Blair threatened employees with un-
specified reprisals because of their union activities was
established and that the Respondent thereby violated
Section 8(a)(l). While the record is unclear about the
exact date of Blair's remarks to Haney, it is clear it oc-
curred between July 19 and the election. Accordingly, it
happened during the critical period between the filing of
the petition and the election and thus constitutes conduct
affecting the results of the election.
The complaint, as amended, alleged that Blair in early
September also threatened employees that strikes would
I There were only six employees who worked under Blair in Haney's
work area including Haney.
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occur if the employees selected the Union as their collec-
tive-bargaining representative. This allegation was based
on Haney's testimony that, in late August or early Sep-
tember, he was discussing a union pamphlet which had
been passed out which had described how union dues
would be determined based upon an example of a negoti-
ated $9-per-hour wage rate. Blair who was standing
nearby said they would have to strike to get the $9 per
hour.' 0 Blair failed to specifically deny Haney's testimo-
ny in :his regard and I therefore credit Haney on the
point. Accordingly, I find Blair's comment obviously co-
ercive and violative of Section 8(a)(1) as alleged.
Haney testified that he had several conversations with
management representatives regarding attending union
meetings. The first such conversation he recalled was ap-
proximately 3 or 4 days before the September 16 election
when Haney had a conversation with Blair in the pres-
ence of Mifeton in Blair's office. Although he could not
recall who initiated the conversation, Haney recalled
that Miffleton remarked that someone should go to the
union meeting. Haney responded that he was not going
and jokingly added that they would kill him if he went.
Haney suggested that Ken Aldridge, an employee in the
same position as Haney, go to the meeting and Blair
laughingly replied that Aldridge could blow the whole
thing.
Later the same day, Haney engaged in a discussion
with Mimeton, Lake, Wesley Phipps, the Respondent's
terminal coordinator and an admitted supervisor, and
employee Leonard Williamson in the terminal garage
near the mechanic's desk. Apparently, there had been
discussion between Mimeton and other employees prior
to the time that Haney entered the conversation. In any
event, Miffleton asked Haney if Union Representative
Brown had strategy sessions and Haney replied that he
did not but that he usually told the employees what was
going on. In further discussion, it was observed that the
drivers were complaining about their benefits being less
than some of the plant operators and Mimeton replied
that the drivers would never get what the plant opera-
tors got because they were salaried employees, union or
no union. Mimeton again mentioned the New Orleans fa-
cility phasing down from 63 to about 28 employees and
added that that meant that if they signed a contract at
Reidsville they were going to phase Reidsville out. At
that point Phipps came up to Haney and told Haney
they ought to get someone to go to the union meeting
that night and find out what was going on. To the best
of Haney's recollection, Miffleton stated that Joel Pratt,
a truckdriver, might be the man to go but Haney replied
that "they" had Pratt pegged and he should not be sent.
Phipps suggested a truckdriver named Hopkins would be
a "pretty good ol' boy" to send. Haney could not recall
anything further in the conversation other than the invi-
'O Haney's recollection with respect to the timing of this event was
vague. However, Union Representative Brown testified for the General
Counsel that the pamphlet which referred to the S9-per-hour negotiated
wage rate was passed out on July 31. It is more likely that the alleged
conversation would have taken place around the time that the leaflet was
distributed. Accordingly, I conclude that Haney is in error and that the
conversation took place in early August rather than late August or early
September, particularly since Blair testified without contradiction he was
out of town in late August through September 1.
tation by Lake to have a beer with him at the Holiday
Inn that evening, an invitation which Haney declined.
The General Counsel relies on the foregoing testimony
of Haney to establish the complaint allegations that Mif-
fleton threatened plant closure for union activities and
that Miffieton and Phipps solicited employees to engage
in surveillance of union activities and to report such ac-
tivities of employees to the Respondent. The Respondent
relies on the testimony of Miffleton, Blair, and Phipps to
rebut the allegations. Thus, MiMeton denied he had any
discussions with Haney about union meetings and specifi-
cally denied asking Haney to attend a union meeting or
to solicit someone else to attend. He did not, however,
specifically deny the reference to the New Orleans
phasedown remark attributed to him by Haney in the
garage discussion.
Blair, on the other hand, admitted that Haney had dis-
cussed with him attendance at a union meeting. Howev-
er, in his version Blair has it that Haney told him that
there was going to be a union meeting, that Haney had
not been informed about it because the fellow workers
did not trust him, and did not want him, and that maybe
the Respondent should send somebody else to the meet-
ing. Blair confirmed that Haney suggested Aldridge but
Blair responded that he would not ask anyone to go to a
union meeting. Further, according to Blair, nobody else
was present when these remarks were made. Blair did
not specify where the conversation took place.
Wesley Phipps, called by the Respondent, denied
asking Haney to attend a union meeting or remarking to
Haney that the Respondent needed someone to attend a
union meeting.
In this instance, I credit Blair, Miffleton, and Phipps
over Haney regarding any request of him to attend a
union meeting. Haney was vague in his testimony about
how the discussion of the union meeting arose. Given
Haney's demonstrated eagerness to ingratiate himself to
the Respondent,'I it is most likely that he broached the
subject of the union meeting and offered the unsolicited
suggestion that Aldridge be sent to the meeting since
Haney was not trusted by other employees. I do not
deem Blair's testimony that Haney said the Respondent
should send somebody else to the meeting as establishing,
as argued by the General Counsel, that Haney was ini-
tially asked to go to the meeting. Indeed, Haney, on
cross-examination, admitted that he was not asked to go.
Moreover, Haney's remark, as related by Blair, is not in-
consistent with any suggestion by Haney that someone
should go and that it should be someone other than him-
self, and then suggesting Aldridge.
With respect to the conversation in the maintenance
garage, I have carefully considered the testimony of
Phipps and his denial of the remark attributed to him by
Haney. While a union meeting may have been again
mentioned in the conversation, I am not persuaded that
Haney did not raise it himself. Moreover, I am persuaded
I In addition to initially informing Blair about the union campaign
and subsequently supplying him with a list of employees and their expect-
ed voting inclinations, Haney, in January 1981, without, I conclude, so-
licitation from Blair, provided Blair with a copy of the statement Haney
had given the Board in connection with the instant case.
346
AIR PRODUCTS AND CHEMICALS, INC.
by Phipps' denials which I found to be sincere and con-
vincing that he did not state that someone should be sent
to the union meeting.
Considering the foregoing, I find that neither Mimeton
nor Phipps solicited employees to attend union meetings
to engage in surveillance. Thus, I find no violation of the
Act in this regard. There remains, however, the com-
ment attributed to Mimeton regarding phasing out
Reidsville if a contract were signed. Since that comment
was not specifically denied by Miffleton and because it is
similar to one I have found he earlier made, I credit
Haney and conclude that the Respondent thereby violat-
ed Section 8(a)(l) as alleged.
The complaint alleges that the Respondent promised
its employees increased wages in an attempt to discour-
age union support. In support of this contention Haney
testified on direct examination that he asked Blair in Sep-
tember what kind of raise he thought that the employees
would get that year. Blair replied, "Well, you guys vote
this thing down and I will recommend all I can get for
you, if you vote the union in, you'll have to negotiate
and strike for what you get." Haney could be no more
specific with respect to the date of Blair's remarks than
to put it between September I and 16.
Blair only generally denied any discussions regarding
pay rates with employees prior to the election. The Re-
spondent urges that Haney on cross-examination retract-
ed his testimony regarding Blair's statement. However,
the record reveals only the following ambiguous ques-
tions and responses:
Q. [By Mr. Kraft] Why did you approach then
Mr. Blair in September asking him about pay in-
creases if it was, if your review date [for a raise]
was four months off?
A. [Haney] The year before I believe we re-
ceived a raise in October, the yearly increase and
then the one at the end of the year; but I was inter-
ested in knowing how much increase we're getting.
Q. Did you tie any of these statements into
whether or not the Union would or would not be
brought into the terminal or into the plant?
A. No, sir, I don't recall any such.
I do not view Haney's testimony in the foregoing par-
ticulars to be either a contradiction or a retraction of the
remarks he attributed to Blair regarding the raise. Ac-
cordingly, and in the absence of a specific denial of the
remark by Blair, I credit Haney and find that Blair un-
lawfully promised to recommend a wage increase for
employees if they rejected the Union. 12
" The Respondent appears to argue in its brief that no violation can
be premised upon Haney's testimony regarding the wage increase because
the Regional Director, in his Report on Objections (G.C. Exh. 1(r)) ap-
proved by the Board, had stated that the Union had failed to present evi-
dence to substantiate an objection allegation that the Respondent had
"Promised employees benefits in an attempt to discourage their support
for the Union." It is sufficient to observe that the complaint herein
frames the issues with respect to the unfair labor practices and the failure
of the Union to present evidence on the "promises of benefits" objection
in the representation case does not bar litigation of the issue of a prom-
ised wage increase in the unfair labor practice proceeding.
Haney testified that he attended a Christmas party
given for the Respondent's employees between Decem-
ber 15 and 19 at a local Holiday Inn. At this party the
Respondent, through Industrial Relations Manager Kraft,
announced benefit changes. He went on to announce an
increase of wage rates for the drivers and in response to
a question to him about the wage rate of plant operators
stated that they would be reviewed in January. It is not
entirely clear from Haney's testimony but apparently
within a day or two following Kraft's remarks Haney
had a conversation with Miffleton in Bruno's office. In
the discussion Haney asked Miffleton what was going to
happen "down the road" and Mimeton replied, "We can
negotiate up to a year without signing a contract," and
"you might tell Brown [the Union organizer] . . . that
on down the line, we can appeal the thing for three or
four years if we want to." The General Counsel con-
tends as alleged in the complaint that Miffleton's remark
constituted a threat that the employees' selection of the
Union would be futile.
Miffleton admitted that, after an announcement of a
wage increase for the drivers in December, Haney had
asked about a raise for the plant employees. Miffleton
testified he responded that they were scheduled for a
review in January. He failed to specifically deny the
other remarks attributed to him by Haney in the same
conversation. I therefore credit Haney's version of the
matter and find the violation alleged in the complaint to
be established. 13
Finally, Haney testified that between the first and
middle of November he heard from a fellow employee
that employee Robert Wilson was breaking the law by
revealing the names of "federal witnesses."" The em-
ployee repeated the names revealed by Wilson and
Haney admittedly thereafter went directly to Blair and
reported what he had heard and repeated the names of
the "federal witnesses." Blair then responded, still ac-
cording to Haney, "Aren't you one of them?" Haney tes-
tified that Blair's response upset him and he told Blair to
"Watch that #3, I1 don't want to hear that no more."
Blair did not deny Haney's testimony as related above,
so there is no contradiction of the testimony which sup-
ports the complaint allegation that Blair in November in-
terrogated its employees concerning their participation in
the investigation of charges filed with the Board. Under
ordinary circumstances, Blair's question of Haney would
be found violative of the Act as a coercive interference
with a Board investigation or proceeding. Like any form
of coercive interrogation, the question puts the employ-
ee, if he is a union supporter, iin a position of having to
provide a false answer or otherwise identify himself as a
supporter and thus become subject to answer employer's
possible retaliation. Indeed, in the instant case Haney tes-
tified that subjectively Blair's question "upset" him.
Under the circumstances here, however, I do not find
Blair's question violative of the Act. In reaching this
's Since Miffieton's December remarks to Haney took place subse-
quent to the election, it may not be considered as conduct affecting the
election.
" Apparently this was a reference to witnesses supplying affidavits to
the Board regarding the Respondent's unfair labor practices.
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion I rely upon the fact that Haney voluntarily
reported to Blair the identity of the "federal witnesses."
He broached the subject, and indicated his willingness to
provide information on this subject. Moreover, Haney's
willingness to voluntarily identify his fellow employees
as Board witnesses serves to undercut any reservation on
revealing his own involvement so that Blair's question
could not be expected to be coercive. And if Haney was
in fact "upset," by Blair's question, I conclude, he was
upset not as a result of fear of premature disclosure of
being a Board witness but rather by fear of exposure of
his own duplicitous conduct.
2. Testimony of Robert Wilson
Employee Robert Wilson was the prime mover for the
union campaign during 1980. His initiation of the union
campaign was prompted by two suspensions that he had
received at the hands of the Respondent, the last one
being from July 4 to about July 8. Wilson testified to
having had three conversations with the Respondent's
officials about the Union. The first he testified was
around early August or late September.' 5 On this occa-
sion he was in the shop area where he talked to Miffle-
ton and Terminal Manager Lake and the subject of the
Union was raised. Miffleton asked Wilson if he thought
employees and truckdrivers Glenn Dyson and Jack
Dixon would stick with Wilson through "this thing."
Wilson said he did not know how they were going to
stick.
Other than a general denial of asking employees ques-
tions, Miffleton did not deny the question attributed to
him by Wilson. Likewise, while Lake denied that he had
made any specific comments to Wilson regarding Dixon
and Dyson he did not specifically deny his being present
when Miffleton made any statements to Wilson about the
two. Under these circumstances, and because Wilson im-
pressed me as credible, I find that Miffleton did ask
Wilson, in the context of a discussion regarding the
Union, if he thought Dyson and Dixon would "stick"
with Wilson. Such question, I find, constitutes interroga-
tion regarding the union activities of other employees
and violates Section 8(a)(1) of the Act as alleged. I fur-
ther find that it constitutes objectionable conduct affect-
ing the election.
Wilson related he had a second conversation with Mif-
fleton which occurred in the drivers' room after Wilson
had come off a trip. Wilson testified that Mimeton had
come into the room and stated that the employees did
not need a union and that the rest of the people there
had told him that they did not need a union. Wilson re-
plied that if that was the case why had they signed
cards. Miffleton responded by repeating the phrase that
the employees did not need a union and that they were
not going to have a union. Miffleton added, however,
is The vagueness of Wilson's testimony as to the date makes it neces-
sary to refer to Mimeton's admissions as to the dates of his presence at
the facility in order to more closely set the time of the conversations.
Thus, I conclude that the conversation more likely took place in late July
when Mimeton was admittedly at the facility. Moreover, the conversa-
tion had to have taken place prior to Wilson's second conversation relat-
ed, infra, with Mimeton which he placed in mid-August which roughly
coincides with a visit of Mimeton to the facility around August 19 or 20.
that if one came in the Respondent would be legally re-
sponsible to sit down and negotiate but it would be
"long and hard coming." Moreover, Miffleton added that
Wilson could look at New Orleans where the Respond-
ent had a large terminal and that, as large as that termi-
nal was, the Respondent had kept those people out 4 or
5 weeks on a strike. This conversation, according to
Wilson, took place around the middle of August.
According to Wilson, he had a third conversation with
Miffleton prior to the election. It took place in the office
where Miffleton, Wilson claimed, had asked to see
Wilson. There, with no one present, Mimeton told
Wilson that if he wanted to back out of the Union the
Respondent would be willing to put a Pinkerton guard
with him to ride to and from work and if necessary to
stay at his house to protect him in order to avoid any
union strong-arm tactics. Further, Miffleton stated that if
Wilson needed any kind of legal fees or attorneys, the
Respondent would furnish them. Wilson, referring to
Lake with whom he apparently had difficulties, asked if
the situation around the plant would be the same if he
"backed out" of the Union. Miffleton responded that
Lake would still be there but he did not think there
would be any repercussions toward Wilson if Wilson
wanted to back out. Wilson rejected Miffleton's offer
stating that he had gone this far and he was going to see
it through.
Miffleton conceded having only one conversation with
Wilson, that being on September 12. That conversation
was at Wilson's request,' 6 according to Miffleton, and in
it he claimed Wilson stated he had not intended for "this
thing" to get "this far" and expressed concern about
what could happen to himself and his family. It was at
this point that Miffieton offered to give Wilson secu-
rity. 1 7
I credit Wilson's testimony with respect to the remarks
of Miffmeton in the drivers' room. The remarks of Miffle-
ton regarding the New Orleans terminal and lengthy ne-
gotiations are similar to those attributed to Miffmeton by
Haney. Thus, I conclude that by making such remarks
Miffleton threatened the futility of organization and im-
plied that strikes would be inevitable in violation of Sec-
tion 8(a)(1) of the Act. However, with respect to the re-
marks attributed to Miffleton in the second conversation,
I do not find the offer of security to Wilson should he
withdraw from the Union to be unlawful under the cir-
cumstances here, even if Mifeton's offer was unsolicit-
ed. In view of the mysterious assault on Haney after the
prior campaign, I conclude that Miffleton's offer was in-
nocuous and not coercive.
In additional testimony, Wilson related that, on the
day following the election, Wilson talked to the Re-
spondent's regional distribution manager, Richard
Golden, in front of the plant. Golden asked him "what in
hell" did he think he was trying to prove. Wilson replied
'" Lake testified that he was present when Wilson asked Mimeton to
talk to him on September 12.
17 Mimeton related that his offer was premised on prior information
from Haney regarding his having been assaulted in one of the earlier
union campaigns. Haney reluctantly testified herein that he had been
mysteriously assaulted by unidentified persons after one of the prior cam-
paigns.
348
AIR PRODUCTS AND CHEMICALS, INC.
that he thought it was pretty evident that he was trying
to get the Union in. Golden then stated that Wilson had
better walk "a damn chalk line." Wilson replied that he
had been walking a chalk line for several months.
Golden also took the occasion to state that he did not
like a reference in a Union handbill to the effect that
Golden was a son of a bitch. Wilson remarked that the
handbill had been simply quoting Golden himself but
Golden replied that nevertheless it had been out of con-
text.' 1
Golden admitted that he had a talk with Wilson the
day following the election but claimed it was at Wilson's
request. Moreover, his version has it that Wilson had re-
marked, "I guess you are going to get me," to which
Golden replied that he was not out to get him, and
added, "You know, if you just follow the line like every-
body else around here, the rules and regulations, you'll
have no problems."
Regardless of who initiated the conversation, I credit
Wilson's version. That version appears more nearly com-
plete since Golden did not deny some of the comments
attributed to him, including the question about what
Wilson thought he was trying to prove. Based upon the
complaint allegations it appears that the General Counsel
contends that Golden's remarks to Wilson constituted in-
terrogation of employees concerning their union activi-
ties and a threat of more onerous working conditions. I
conclude that the facts as found substantiate the com-
plaint allegations. Although Wilson's union support was
well known to the Respondent, Golden's inquiry into the
basis for Wilson's union efforts tend to be coercive and
to interfere with employee Section 7 rights. See PPG In-
dustries, Inc., 251 NLRB 1146 (1980), where the Board
held similar interrogation of known union adherents co-
ercive. Golden's threat to Wilson to walk a "chalk line"
clearly implies that Wilson would be subject to more
strict observance of the Respondent's rules and regula-
tions and, to this extent, constitutes a threat of more
onerous working conditions.' 9
3. Testimony of Horace Shaw
Horace Shaw, a former employee of the Respondent,
called by the General Counsel, testified that he talked to
Miffmeton and Blair about the union campaign approxi-
mately 2 or 3 weeks before the election in Assistant
Plant Manager Bruno's office where he had been called
by Miffleton. According to Shaw, Miffleton asked him
what he thought about the Union. When Shaw, a plant
operator at that time, 20 replied that he just wanted to
think it over and do whatever he thought was best. Mif-
fleton said he hoped that Shaw did what was best and
helped "us" out.
8s The Union had distributed a letter dated September 11, 1980. in
which it discussed the election and quoted Golden as calling himself "one
tough SOB." Resp. Exh. 4. I conclude that this was the leaflet to which
Golden was referring.
19 Since Golden's remarks to Wilson occurred outside the critical
period they could not be considered as conduct affecting the election.
'o Shaw was terminated on October 20, 1980. Case I I-CA-9615 was
filed contending, inter alia, that the discharge was unlawful but the Re-
gional Office of the Board apparently found no merit to the contention
and the complaint herein contained no allegations with respect to Shaw's
discharge.
Later the same day, Shaw talked to Plant Manager
Blair in Blair's office after Blair had called him in. Blair
asked him how he felt about the Union and Shaw told
Blair he had a marriage separation going on during that
particular period and he did not want to give anybody
any opinions, that he had a lot of pressure on him and he
did not want to talk about anything. This apparently
concluded the conversation. The following day, howev-
er, Shaw again talked to Blair in Blair's office with Mif-
fleton present. Both Mimeton and Blair sought Shaw's
support for the Respondent. According to Shaw, Mime-
ton stated that if the Union came in they could phase the
Reidsville plant out, that they did not have to operate.
Moreover, Miffieton went on to say that plants without
unions were better off than plants with unions.
Mimeton denied asking about Shaw's union "affili-
ation," or even discussing the Union with Shaw. With
respect to any comments about plant continuation, Mif-
fleton related that in discussing a warning letter to
Shaw2 ' concerning his inadequate job performance
around the end of June he had told Shaw that the future
for the Respondent was "bright," that the facility was
going to continue, and that things were looking good
from an operational standpoint.
Blair did not specifically deny Shaw's testimony. He
reported only one conversation with Shaw and that was
with respect to the warning letter issued to Shaw in late
June.
I have carefully considered the contents of Shaw's tes-
timony and his demeanor while testifying. I am persuad-
ed that he is in error regarding the approximate date
when he says he talked to Miffleton and Blair. In view
of Miffieton's presence at the plant on August 19 and 20,
and not again until September 12, it is more likely that
the talks took place on August 19 or 20 rather than 2 to
3 weeks prior to the election. Moreover, I find the accu-
racy of Shaw's testimony further subject to question in
view of his failure to recollect receipt of the Respond-
ent's letter concerning his job performance. In this
regard I am persuaded that Blair and Miffieton did dis-
cuss that letter with him. Lastly, I have considered possi-
ble bias on Shaw's part against the Respondent as a
result of his discharge. Nevertheless, there was a basic
and underlying sincerity in his manner of testifying that I
found persuasive. In addition, the questions and com-
ments he attributed to Blair and Mifeton are consistent
with the remarks attributed to them by other credited
witnesses herein. Accordingly, I credit Shaw and find
that Miffmeton and Blair violated Section 8(aXl) of the
Act through interrogation of Shaw concerning his union
sentiments and through Miffleton's threat of plant clo-
sure. Such conduct, a fortiori, constituted conduct affect-
ing the results of the election.
4. Testimony of Milton Alexander
Truckdriver Milton Alexander related in his testimony
that he had had several conversations with supervisors of
the Respondent about the Union. One was Terminal
Manager Roy Lake and the conversation took place in
21 Resp. Exh. 5. Shaw could not recall receiving the letter.
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first part of July. Alexander testified that he had just
come off a trip and Lake had asked to see him in Lake's
office. In the office Lake said that he had heard that Al-
exander was for the Union. Alexander responded that he
did not know what Lake had heard but that was not the
case. No further details of that particular conversation
were provided by Alexander. Lake did not deny Alexan-
der's testimony which I find credible. However, rather
than a statement creating the impression of surveillance
of union activity as the complaint alleges, I conclude
Lake's remark was more a form of unlawful interroga-
tion since it put Alexander in the position of having to
admit or deny any union involvement. I find Lake's re-
marks violative of Section 8(a)(1) of the Act. 2 2
In further testimony, Alexander stated he had a con-
versation with Stan Miffieton in early September in the
drivers' room where Mimeton told Alexander that the
Respondent was very strong and that it would fight the
Union for 5 years if that was what it took. Miffleton
added that the Respondent kept people around in case
there was a strike or something and they could bring
them in to run the plant. Miffleton also stated that he
had heard that there were three drivers that were "kind
of leaning" toward the Union and knew Alexander was
good friends with them and asked him to talk to them
and try to get them "against" the Union.
Alexander testified to another conversation with Mif-
fleton about the Union the day prior to the election in
Roy Lake's office. Only Mimeton and Alexander were
present when Miffleton told him that the same thing that
happened at the Respondent's New Orleans terminal
would probably happen at Reidsville, explaining that em-
ployees would go out on strike, that the Respondent
would not let the Reidsville plant grow, and that the Re-
spondent would phase out the jobs of those who went on
strike. In addition, Miffleton stated "something about"
they would not have to sit down and negotiate a con-
tract, something about North Carolina having a right to
withdraw, that if they did, if the law did not make them
sit down they would drag it on as long as 5 years if they
had to.
Mimeton, while admitting he may have had conversa-
tions with Alexander prior to the election, could recall
no conversations with him involving the organizing
process and eventual establishment of a labor agreement.
Although Alexander in his testimony exhibited some
confusion as to Miffleton's exact wording, I am con-
vinced his testimony was truthful, and, in view of Miffle-
ton's failure to specifically deny the remarks attributed to
him by Alexander and also since such remarks are in
keeping with those attributed to Miffieton by other cred-
ited witnesses, supra, I find Alexander's testimony suffi-
ciently reliable2 3 to establish the complaint allegations
'a Alexander's testimony with respect to the date of Lake's remark is
too vague to establish that it occurred within the critical period between
the filing of the petition and the election. I therefore find it does not pro-
vide a basis for setting aside the election.
"I I conclude, however, that Alexander's conversation with Mimeton
took place during Mimeton's September presence at the Respondent's fa-
cility beginning September II rather than in early September as Alexan-
der claimed.
that Miffleton unlawfully solicited Alexander to dissuade
other employees from supporting the Union and threat-
ened its employees that their selection of a bargaining
representative would be futile, all in violation of Section
8(a)(l) of the Act. Such conduct on the part of the Re-
spondent likewise constitutes objectionable conduct af-
fecting the election.
Alexander also attributed alleged coercive comments
to John Gunter, the Respondent's dispatcher and an ad-
mitted supervisor. Gunter's comments took place on the
same day of, but shortly after, the election. Alexander
initiated the conversation by asking Gunter who had
won. Gunter answered that the Company had. Alexan-
der then asked if they were "going to cause any static at
the ones who voted." Gunter replied negatively but
added that the Respondent had a pretty good idea who
did vote and that Bob Wilson would be "gone the first
time he messed up."
Gunter testified for the Respondent admitting the con-
versation with Alexander. In his version, however, he re-
lated that, in response to a question by Alexander as to
whether anybody would be "hired or fired" as a result of
the outcome of the election, Gunter had responded,
"Not that I know of." To a specific question of Alexan-
der as to whether Wilson would be fired Gunter testified
he answered that he had no power over that as it was
the Company's decision, but as far as he knew nobody
was going to be fired.
I credit Alexander's version. In context, Gunter's com-
ments created an impression of surveillance of employ-
ees' union support, and he also threatened discharge of
an employee for union activity in violation of Section
8(a)(l).24
5. Testimony of Jack Dixon
Jack Dixon, another of the Respondent's drivers, testi-
fied that he talked to Miffmeton about the Union on two
occasions. The first time was around the first of Septem-
ber in the drivers' room. Roy Lake came in and out of
the room during Miffleton's remarks, but Dixon did not
indicate that Lake heard any of the conversation. Ac-
cording to Dixon, he was asked by Mimeton what he
thought about the Union. Miffleton went on to tell
Dixon his opinion of the Union and stated that the Union
was no good, that the employees did not need it, and
that he did not see any way that the employees could
benefit from it. Mimeton added that the Union was part
of the Mafia and that if the employees went with the
Union, they would be phased out like employees in New
Orleans, and that, if the Respondent had to, the gate
would be locked and there would be no jobs at all. Mif-
fleton, Dixon testified, also asked him to talk to the other
drivers and tell them that they did not need a union but
Dixon refused to do so. Finally, Mimeton told Dixon
that Miffleton would be the one to do the bargaining on
"4 Even if Gunter's version were credited he clearly did not negate the
possibility of the Respondent's retaliation against union supporters. Such
a failure in itself, I find, and as the General Counsel argues, conveyed to
Alexander that the Respondent was not above considering firing Wilson
and other union supporters for their union activity.
350
AIR PRODUCTS AND CHEMICALS, INC.
any contract, but that he was not going to sign "no con-
tract," because they did not need a union.
About a week prior to the election, still according to
Dixon, he met Mimeton in the garage area and Mimeton
told him he wanted to talk to Dixon one more time
about the Union. Dixon replied that he had already told
Mimeton how he felt about the Union and Miffleton re-
plied, "Don't tell no damn lie, you're talking to Mime-
ton, you're not talking to another driver." Mimeton then
commented, "We've been told on two or three occasions
that you're working with Bob Wilson on the Union." Al-
though Dixon had signed a union authorization card he
denied to Mimeton that he was working with Wilson
and ended the conversation by walking off.
After reflecting on Mimeton's suggestion that he was
a liar, and after returning to the plant from a trip on the
same day, Dixon became angered and went into Lake's
office. There he complained bitterly to Lake about Mif-
fleton's reference to him as a liar. Lake responded by
saying, "Jack, we've been told by two or three that you
are working with Bob on the Union." Dixon gave the
following testimony regarding the remainder of the con-
versation:
I said, Mr. Lake, did I not tell you when I came to
work that if I wasn't satisfactory to talk to me, and
if I had any gripe that I would talk directly to you
instead of through someone else? He said yes. I
said, you or Mr. Miffmeton either one have never
asked me if I was for or against the Union, you've
just told me what you heard, hearsay. He said,
that's right. He still didn't ask, he said, we're not
going to have it, he said, we can replace the drivers
we've got, we're not going to have a Union. He
said, New Orleans went Union and it'll be like
them, he said, we'll just have to phase the plant out
because we're not going to have a Union.
Mimeton did not specifically deny having a conversa-
tion with Dixon in the drivers' room, but he recalled
only one conversation with Dixon, that being on Sep-
tember 12. On that occasion, according to Mimeton,
Dixon stopped him in the garage and commented that he
was "hanging in there with the Company." Mifeton tes-
tified he replied that the election was next week, that it
was all over but the shouting, and that he did not know
who to believe one way or the other.
Lake acknowledged his conversation with Dixon on
September 12 and admitted that Dixon had expressed
anger as a result of a conversation with Mimeton. Dixon,
according to Lake said, "I told y'all I'm a company man,
but Stan made me mad today." Moreover, Dixon said
that if the election was held at that point he would vote
four times for the Union. Lake testified he told Dixon
that he was not interested in what anybody said about
him, that what interested Lake was "what opportunity
you have on the election September 16." Lake then told
Dixon to vote his conscience, to use his head and not to
let his heart mislead him. Lake could not recall talking to
any employees about "New Orleans" but did not cate-
gorically deny that he talked to Dixon about it nor did
he specifically deny the other comments attributed to
him by Dixon.
I am persuaded that Dixon is in error with respect to
his testimony that Miffmeton asked him how he felt about
the Union. Indeed, Dixon on cross-examination contra-
dicted his earlier testimony that Mimeton had specifical-
ly asked him about his union inclinations. Accordingly, I
do not credit Dixon's testimony regarding any unlawful
interrogation by Mimeton. On the other hand, the re-
mainder of Dixon's testimony has the ring of truth to it,
and I am persuaded that the other comments he attribut-
ed to Lake and Miffleton were in fact made. Such com-
ments, again, were clearly consistent with coercive com-
ments attributed to the Respondent's representatives by
other of the General Counsel's witnesses as related
herein. Accordingly, I find that, through the remarks of
Miffleton and Lake as related by Dixon, the Respondent
in violation of Section 8(aX1) of the Act threatened that
selection of a bargaining agent by employees would be
futile, solicited employees to dissuade other employees
from giving support to the Union, threatened employees
with plant closure and a loss of jobs if they selected the
Union to represent them, and created the impression of
unlawful surveillance of their union activities. I further
find that such violations amounted to conduct affecting
the election.
B. The Alleged 8(a)(5) Violation
1. The Union's majority status
The Union primarily through the activity of Robert
Wilson secured signatures of the following employees of
the Respondent on union authorization cards on the
dates set opposite their respective names:
1. Roger Haney
2. Milton T.
Alexander
3. Jack T. Dixon
4. Glenn W. Dyson
5. James R. Farrish
6. John D. Grant
7. William H. Hopkins
8 Raymond Landis
9. Donald P.
McKinney
10. Thomas V.
Powell, Jr.
11. Joel A. Pratt
12. Horace B. Shaw
13. Robert A. Wilson
July 19
July 7
July 6
July 9
July 9
July 9
July 9
July 15
July 9
July 9
July 5
July 21
July 4
The union cards so signed not only designated the
Union as the signer's collective-bargaining representative
but also constituted an application for membership in the
Union and authorized the checkoff of union dues. No
testimony was offered regarding improper solicitation of
the above cards which would adversely affect their va-
lidity in establishing the Union's majority status nor were
any questions raised as to the authenticity of the cards
which were stipulated into evidence. I find such cards2 s
R" G.C. Exhs. 6 and 9-20.
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be valid designations of the Union which may be con-
sidered in determining the Union's status as representa-
tive of a majority of the unit employees.
The General Counsel offered testimonial evidence that
one additional authorization card was signed by a unit
employee and would rely upon that testimony to estab-
lish further support for the Union's majority status. In
this regard, employee Benjamin Chilton, a plant opera-
tor, testified that he signed a union authorization card
given him by Robert Wilson during the Union's cam-
paign. Chilton returned the card to Wilson. While
Wilson testified that Chilton did sign a card he did not
know what happened to the card subsequent to Chilton's
returning it to him. Chilton did not testify about when he
signed the card and Wilson could only approximate the
time as being "around" the time of the election. Wilson
further testified that sometime after the election the Re-
spondent was advised by letter from the Union that Chil-
ton was an organizer for the Union.26
The General Counsel, citing Hedstrom Company, a
subsidiary of Brown Group, Inc., 223 NLRB 1409 (1976),
enfd. 629 F.2d 305 (3d Cir. 1980), and Aero Corporation,
149 NLRB 1283 (1964), enfd. 363 F.2d 702 (D.C. Cir.
1966), cert. denied 385 U.S. 973, contends that the testi-
mony of the employee card signer is itself probative of
the union's majority status in circumstances where the
union card has been misplaced. While the cited principle
is clear it has no application in the instant case for the
testimony fails to establish when Chilton signed the card.
Wilson's testimony was too vague to establish even an
'approximate date. Thus, the record contains no assur-
ances the card was executed at any relevant time. Aero
Corporation, supra at 1291. Moreover, there was no
showing that Chilton was identified to the Respondent as
a union supporter at any specific point in time so as to
make the establishment of the date of the card less criti-
cal. See J. P. Stevens and Company Inc., 247 NLRB 420
(1980). Accordingly, and while I am persuaded by Chil-
ton's credible testimony that he in fact signed a union
card, I find it inappropriate to rely upon such card to es-
tablish the Union's majority status at any particular time.
The Respondent concedes that its employee work
force remained stable during the organizational campaign
and admitted that these employees appearing on the elec-
tion eligibility list (G.C. Exh. 21) were its only unit em-
ployees during the period from July 1 through the termi-
nation of Horace Shaw in October. The eligibility list
contained the names of 24 unit 2 7 employees including
the 13 card signers listed, supra. I conclude that as of
July 21, the majority of the Respondent's employees in
the appropriate unit had signed authorization cards desig-
nating the Union as their collective-bargaining repre-
sentative.
By letter to the Respondent dated July 16, the Union
advised the Respondent that it represented "a majority of
"a The date of the letter was never established on the record.
at The unit in which the election was held, and which I conclude is an
appropriate one for collective-bargaining purposes, is as follows:
All truck drivers, garage mechanics, plant operators and mainte-
nance employees employed at the employer's plant in Reidsville.
North Carolina, excluding all office clerical employees, professional
employees, guards and supervisors as defined in the Act.
your Truck Drivers at the Reidsville, N.C. facility in
what we consider to be an appropriate unit." 28 The
letter concluded with a request for recognition and a re-
quest for a meeting "so that we may discuss the matter
in detail."
Beginning about July 28, Roger Haney and another
employee, William Hopkins, prepared a petition ad-
dressed to the National Labor Relations Board contain-
ing the following language:
We, the undersigned hereby request to withdraw
any and all applications for membership into Chauf-
feurs Teamsters Union Local 391, also we do not
wish to be represented by Chauffeurs Teamsters
Union Local 391.
The petition which was dated July 28 listed 19 em-
ployees, including 8 who had previously signed union
authorization cards. 29 It is unclear from the record ex-
actly when the individuals signed the petition or when
the petition was submitted to the Board. Haney's testi-
mony was that he prepared the petition at Hopkins'
urging and signed the petition at Hopkins' request. Hop-
kins thereafter circulated it. While Haney testified he be-
lieved he signed it in September, I do not credit that tes-
timony since the petition is dated July 28 and since
Haney's is the first signature on it, it is likely that he
signed it on or about the date it was prepared. As for the
reason for signing the petition, Haney testified that he
felt there would be "problems," that he was afraid of
strikes and a loss of benefits as well as falling from the
Respondent's favor and losing "opportunities down the
road."
Only two other card signers testified regarding their
signatures on the withdrawal petition. Thus, Benjamin
Chilton3 0 related that he signed because he discussed it
with Wilson and Wilson told him to go ahead and sign it
so it could "take some of the pressure off" the employ-
ees. 31 Similarly, Jack Dixon testified that he signed the
petition, in order to get some of the "heat off of us."
The General Counsel, relying on Quality Markets, Inc.,
160 NLRB 44, 45-46 (1966), enfd. 387 F.2d 20 (3d Cir.
1967), argued in his brief that the Respondent's unfair
labor practices prior to the withdrawal petition vitiated
the withdrawals. In Quality Markets, the Board held that
while there was no coercive conduct directed at the em-
ployee who sought to withdraw his card, a presumption
28 G.C. Exh. 3. Consistent with the unit inl which the request for rec-
ognition was made, the petition as initially filed in Case 11-RC-4907,
sought only to include in the unit "All Truck Drivers."
29 Specifically these were Haney, Jack Dixon, Glenn Dyson, James
Farrish, William Hopkins, Donald McKinney, Thomas Powell, and Joel
Pratt.
so I have considered Chilton's signing of the petition of withdrawal as
possibly indicating that Chilton signed a union card prior to July 28.
Many employees, however, who had never signed union authorization
cards signed the withdrawal and revocation petition. Thus, and since
Chilton in his testimony did not clearly claim to have signed a card prior
to signing the petition, I remain unpersuaded that the record establishes
the existence of a card signed by Chilton at any relevant time herein.
3S Wilson did not sign the petition but testified that he had discussed
the petition with Union Representative Brown who told him to tell the
men to go ahead and sign it, that it did not mean anything anyway that it
would keep the "heat" off the employees.
352
AIR PRODUCTS AND CHEMICALS, INC.
was nevertheless warranted that the withdrawal was the
result of the employer's unlawful conduct in view of the
small size of the unit (21 employees) and the nature of
the unlawful conduct directed at other employees which
was designed specifically to coerce employees into with-
drawing from the union. The Respondent, on the other
hand, argued that the petition was an effective revoca-
tion of union authorizations citing Struthers-Dunn, Inc. v.
N.LR.B., 574 F.2d 796 (3d Cir. 1978), TMT Trailer
Ferry, Inc., 152 NLRB 1495 (1965), and The Stride Rite
Corporation, 228 NLRB 224 (1977). The first two cases
cited by the Respondent are clearly distinguishable for in
the first the revocations were made prior to the com-
mencement of unfair labor practices by the employer
while in the second case the employer committed no
unfair labor practices at all. In the third case, Stride Rite,
it is not clear whether the card retrieval by one employ-
ee which was found effective was after the commence-
ment of the employer's unfair labor practices. Other
Board cases appear to adhere to the Quality Markets rea-
soning. See, e.g., Marcus J. Lawrence Memorial Hospital,
249 NLRB 608 (1980); Motz Poultry Company, 244
NLRB 573 (1979); World Wide Press Inc., 242 NLRB
346 (1979); James Innaco, d/b/a Skyline Transport, 228
NLRB 352 (1977); Serv-U-Stores Inc., 225 NLRB 37
(1976).
In any event, in the instant case it is quite clear that
the petition prepared by Haney followed the Union's re-
quest for bargaining by almost 2 weeks and its attainment
of majority status by I week. Long before the withdraw-
al petition was prepared the Respondent had already em-
barked upon a course of unfair labor practices. In this
regard the Respondent shortly after receipt of the notice
of Wilson being on the union organizing committee in
early July had interrogated Haney and subsequently
around July 22 had threatened Haney that the plant
might be closed if organized, had threatened the dis-
charge of Wilson, and had expressed the inevitability of
strikes if the employees organized. Under these circum-
stances, it cannot be said with any degree of certainty
that the choice in preparing or signing the withdrawal
petition was made free of the coercive atmosphere cre-
ated by the Respondent's unfair labor practices already
found herein. Indeed, although Haney undoubtedly fol-
lowed a course designed to curry favor with the Re-
spondent, 3s his testimony also reflects that his conduct
with regard to the petition was premised on the fear of
strikes and a loss of benefits and to this extent was di-
rectly related to the Respondent's unlawful threats. Hop-
kins apparently shared Haney's same concerns because
Wilson credibly testified without objection that Hopkins
expressed concern that if the employees struck the Re-
spondent could keep the employees out "forever," and
"we really just couldn't stand it." Accordingly, I find
and conclude that the purported withdrawal of union
support by those signatory to the petition was caused by
the Respondent's unfair labor practices, and that the peti-
tion therefore does not serve to invalidate the union
cards earlier signed by those employees appearing on the
"s Haney in preparing the petition was simply following a course of
conduct encouraged and aided by Blair during the earlier union cam-
pign.
petition. World Wide Press. Inc., supra; Skyline Transport,
supra, Quality Markets, supra.
2. The appropriateness of a bargaining order
I have previously found herein that the Respondent
engaged in certain conduct violative of Section 8(aXl) of
the Act. Moreover, I conclude that such conduct inter-
fered with the September 16 election and warrants the
setting aside of the results of that election. I have also
concluded that, as of July 21, the Union represented a
majority of employees of the Respondent in the unit in
which the election was held. In view of these findings
favorable to the General Counsel's case, and based on
the Union's request for bargaining and the Respondent's
refusal to recognize and bargain with the Union, 33 the
General Counsel contends that the principles of Gissel
Packing Co., supra, should be applied, and that a finding
of an 8(aX5) violation be reached and a bargaining order
entered in the case. Conversely, the Respondent argues
that a bargaining order is inappropriate here for, even as-
suming the commission of some unfair labor practices on
its part, it would characterize such practices as a
"minor," and not extensive, with "minimal" impact on
the election process.
In Gissel, supra, the Supreme Court addressed the ap-
propriateness of a bargaining order remedy in three cate-
gories of unfair labor practices cases. The first category
refers to "exceptional" cases marked by "outrageous"
and "pervasive" unfair labor practices which are so per-
vasive that their effects preclude the holding of a fair
and reliable election. A bargaining order is appropriate in
such cases even absent the establishment of a union card
majority. See also United Dairy Farmers Cooperative Asso-
ciation, 257 NLRB 772 (1981). The second category in-
volves cases where the unfair labor practices are less per-
vasive but still so serious or egregious that the possibility
of erasing the effects of such practices by the use of tra-
ditional remedies is so slight as to render uncertain the
possibility of a fair rerun election in which case reliance
upon union authorization cards would be a more reliable
basis for determining union majority status. In such cases
a bargaining order would be appropriate if majority
status of the union is established. A bargaining order
would be inappropriate in the third category of cases
where the unfair labor practices are "minor" or "less ex-
tensive" and have "minimal" impact upon the election.
Determination of which category an employer's unfair
labor practices fall under is often, as here, a difficult task.
The difficulty is underscored by a number of cases in
which the Board has disagreed with its administrative
law judges and the courts have disagreed with the
Board. In the instant case the difficulty is reduced by the
immediate elimination of consideration of the first Gissel
category referred to above since I have found that the
Union enjoyed majority status based upon cards.
In determining whether the Respondent's conduct was
"serious" or "egregious" so as to fall within the Gissel
second category a number of elements must be consid-
II The Respondent in its answer to the consolidated complaint ad-
mitted that it had "maintained its legal right to refuse to bargain with the
Union ....
353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ered. The discharge of union adherents in violation of
Section 8(a)(3) and (1) of the Act is one such element.
As the Board said in Apple Tree Chevrolet, Inc., supra, the
discharge of an employee because of union activity is
one of the most flagrant means by which an employer
can hope to dissuade employees from selecting a bargain-
ing representative because no event can have more crip-
pling consequences to the exercise of Section 7 rights
than the loss of work. But there were, of course, no un-
lawful discharges in the case sub judice, only threats of
discharge.
Another element to be considered is the existence of
an unfair labor practice history on the part of the em-
ployer. There was no unfair labor practice history here,
although the Respondent, based on credited evidence,
clearly demonstrated its hostility to employee union ac-
tivity in at least one prior union campaign and quickly
moved to thwart such activity. In any event, as the
Board stated in United Dairy Farmers, supra at 773, fn.
11, "Although recidivism is an important element to be
weighed, we do not consider it to be a prerequisite to
the issuance of a bargaining order."
The size of the unit in which the unfair labor practices
occurred is clearly an element for consideration. "The
Board has often observed that the impact of an employ-
er's unfair labor practices is exacerbated in such circum-
stances [a relatively small collective-bargaining unit of
about 30 employees], in which a coercive message can be
readily disseminated throughout the unit, and where the
perpetrator of the message is frequently in close personal
contact with employees." United Dairy Farmers, supra at
773. And in Jamaica Towing, Inc., 247 NLRB 353, 354
(1980), the Board said, "Experience has shown that an
employer's unlawful conduct is magnified when directed
at a small number of employees, such as here." In the in-
stant case the unit was composed of only 24 employees.
The coercive conduct found was directed to at least five
employees or about 20 percent of the total unit. It is
likely then, in view of the small size of the unit, that the
coercive messages were further disseminated to the total
unit.3 4 Moreover, the likelihood of further dissemination
is increased by the relatively large number of Respond-
ent's representatives involved in the coercive conduct.
With respect to the quality and severity of the Re-
spondent's conduct, also elements which must be consid-
ered in deciding the appropriateness of a bargaining
order, I have found that the Respondent on more than
one occasion threatened that its facility would be closed
if the employees selected, the Union. As related by the
Court in Gissel, supra at 619-620, "[T]he Board has often
found that employees, who are particularly sensitive to
rumors of plant closing take such hints as coercive
threats rather than honest forecasts." And as further rec-
ognized by the Court, threats to close are among the
more effective threats in destroying election conditions
for a longer period of time. Id. at 611, fn. 30. And the
Board stated in Philadelphia Ambulance Service, Inc., 238
s4 The Respondent observes that the election results, 16 to 8 against
union representation, would suggest that its conduct had little impact on
the election. However, a change of only five votes would have changed
the results, and as noted above, five employees were subjected to coer-
cive conduct.
NLRB 1070, 1071 (1978), "The Board and the courts
have long recognized that threats to close down a facili-
ty because of union activity are among the most serious
and flagrant forms of interference with the free exercise
of employee rights." Similarly, in Ethyl Corporation, 231
NLRB 431, 432 (1977), the Board said, "We can think of
no more potent threat of retaliation available to an em-
ployer than a threat of loss of work and of layoffs if em-
ployees choose the union." Finally in Automated Business
Systems, a Division of Litton Business Systems, Inc., 205
NLRB 532, 536 (1973), the Board said:
It needs no extended discussion or lengthy list of
authorities to demonstrate that threats of plant clos-
ings are among the most serious and most flagrant
interferences with the right of employees to decide
for themselves the question of union representation.
In the case sub judice the repetition of the threat to
close coupled with the other violations which occurred
beginning with the Respondent's knowledge of the union
activity and continued on through the time of the elec-
tion in a relatively small unit constitutes, I conclude,
conduct which undeniably dissipated the Union's major-
ity status and impacted substantially on the election proc-
ess. Indeed, I find that it clearly interfered with the Sep-
tember 16 election. I further conclude, based on the po-
tency and extensiveness of the Respondent's unlawful
conduct, and the Respondent's proclivity for interference
as demonstrated by its conduct in the prior campaign,
that it is improbable that the use of traditional remedies
here would be sufficient to ensure a fair rerun election,
and that the desires of the employees with respect to the
Union as established by union authorization cards is
more reliable. Cf. Sturgis-Newport Business Forms, Inc.,
227 NLRB 1426 (1977), enfd. 563 F.2d 1252 (5th Cir.
1977); Capitol Foods, Inc., d/b/a Schulte's IGA Foodliner,
241 NLRB 855 (1979); Dependable Lists, Inc., 239 NLRB
1304 (1979). Accordingly, I find that the Respondent
violated Section 8(a)(5) and (1) as alleged and I shall rec-
ommend the issuance of a bargaining order. 35
Considering the foregoing, and having found that the
Respondent's conduct described above during the critical
period prior to the representation election of September
16, 1980, I hereby recommend to the Board with respect
to Case 11-RC-4907: (1) that the Union's objections co-
extensive with the unfair labor practices found herein be
sustained; (2) that the representation election be set aside;
and (3) that the petition be dismissed in view of the issu-
ance of a remedial bargaining order in the same unit in
which the representation election was held.
as The Respondent has raised no issues with respect to the validity of
the Union's request for bargaining based on the difference in the unit re-
quested and the unit in which the election was held. In any event, the
Respondent by its refusal to consider the Union's request and offer to
meet and discuss the "matter in detail" foreclosed early clarification as to
the unit composition. Accordingly, I conclude that a finding of an 8(aX5)
violation is not precluded by the Union's unit request. See Heck's Inc.,
156 NLRB 760 (1966). Cf. Chester Valley, Inc., 251 NLRB 1435 (1980).
Furthermore, even the absence of a finding of an 8(aX5) violation would
not bar entry of a bargaining order in the circumstances of this case.
Apple Tree Chevrolet, Inc., supra; Beasley Energy, Inc.., d/b/a Peaker Run
Coal Company. Ohio Division #1, 228 NLRB 93 (1977).
354
AIR PRODUCTS AND CHEMICALS, INC.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of the Respondent consti-
tute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All truck drivers, garage mechanics, plant operators
and maintenance employees employed at the em-
ployer's plant in Reidsville, North Carolina, exclud-
ing all office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
4. Commencing on or about July 21, 1980, and con-
tinuing thereafter, the Union was designated by a major-
ity of the Respondent's employees in the bargaining unit
described above as their exclusive collective-bargaining
representative.
5. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by:
(a) Interrogating its employees concerning their union
activities and support and the union activities and sup-
port of other employees.
(b) Threatening its employees that their selection of
the Union as their collective-bargaining representative
would be futile.
(c) Soliciting its employees to dissuade other employ-
ees from giving support and assistance to the Union.
(d) Threatening its employees with closing or phasing
out the plant if they select the Union as their collective-
bargaining representative.
(e) Creating the impression among its employees that
their union activities are under surveillance.
(f) Threatening its employees with discharge, more
onerous working conditions, or other unspecified repri-
sals because of their union activity.
(g) Promising its employees recommendations for
wage increases if they rejected the Union.
(h) Threatening its employees with the inevitability of
lengthy strikes if they selected the Union as their collec-
tive-bargaining representative.
6. By refusing to recognize and bargain with the
Union as the exclusive bargaining representative of its
employees in the appropriate unit set out above while en-
gaging in serious and substantial unfair labor practices as
set out above, the Respondent has engaged in, and is en-
gaging in, unfair labor practices affecting commerce
within the meaning of Section 8(aX5) and (1) of the Act.
7. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
8. Except as found above, the Respondent has not en-
gaged in any other unfair labor practices alleged in the
consolidated complaint.
THE REMEDY
Since I have found that the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend to the Board that
the Respondent be ordered to cease and desist from en-
gaging in those unfair labor practices. Because of the
widespread misconduct of the Respondent and because
the numerous and serious violations of the Act found
herein demonstrate a general disregard by the Respond-
ent for fundamental statutory rights of employees I shall
recommend a broad cease-and-desist order prohibiting
the Respondent from "in any other manner" interfering
with employee rights.
I have previously found herein that a bargaining order
is appropriate from the circumstances of this case. Con-
sistent with the Board's policy as set forth in Trading
Port, Inc., 219 NLRB 298 (1975), and applied in Donelson
Packing Co., Inc., 220 NLRB 1043 (1975), and Independ-
ent Sprinkler Fire Protection Co., 220 NLRB 941 (1975), I
shall recommend that the bargaining order be made ef-
fective from July 21, 1980, the date the Union achieved
its majority status based upon authorization cards follow-
ing its request for recognition and bargaining after the
Respondent had commenced its unfair labor practices.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to the provisions of Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 36
The Respondent, Air Products and Chemicals, Inc.,
Reidsville, North Carolina, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
activities and support and the union activities and sup-
port of other employees.
(b) Threatening its employees that the selection of
Chauffeurs, Teamsters & Helpers Local Union No. 391,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica as their collective-bargaining representative would be
futile.
(c) Soliciting employees to dissuade other employees
from giving assistance or support to the Union.
(d) Threatening its employees with closing or phasing
out its plant if they selected the Union as their collec-
tive-bargaining representative.
(e) Creating the impression among its employees that
their union activities are under surveillance.
(f) Threatening its employees with discharge, more
onerous working conditions, or other unspecified repri-
sals because of their activity oh behalf of the Union.
(g) Promising its employees recommendations for
wage increases if they rejected the Union.
(h) Threatening its employees with the inevitability of
lengthy strikes if they selected the Union as their collec-
tive-bargaining representative.
a6 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary in order to effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with Chauffeurs, Teamsters & Helpers Local Union No.
391, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive collective-bargaining repre-
sentative of the employees of the Respondent in the ap-
propriate bargaining unit described below:
All truck drivers, garage mechanics, plant operators
and maintenance employees employed at the em-
ployer's plant in Reidsville, North Carolina, exclud-
ing all office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
(b) Post at its Reidsville, North Carolina, facility
copies of the attached notice marked "Appendix."3 7
Copies of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by the
Respondent's authorized representative, shall be posted
by it immediately upon receipt thereof, and maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated com-
plaint be dismissed with respect to those allegations of
violations of the Act other than those specifically found
herein.
st In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT interrogate our employees regard-
ing their activities and support of Chauffeurs,
Teamsters & Helpers Local Union No. 391, affili-
ated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, or the activities and support of other em-
ployees with respect to the Union.
WE WILL NOT threaten employees that their se-
lection of the above Union as bargaining representa-
tive would be futile.
WE WILL NOT solicit our employees to dissuade
other employees from giving support and assistant
to the Union.
WE WILL NOT threaten our employees with clos-
ing or phasing out the plant if they select the Union
as their collective-bargaining representative.
WE WILL NOT create the impression among our
employees that their union activities are under sur-
veillance.
WE WILl NOT threaten our employees with dis-
charge, more onerous working conditions, or other
unspecified reprisals because of their activity on
behalf of the Union.
WE WILL NOT promise our employees recommen-
dations for wage increases if they reject the Union.
WE WILL NOT threaten our employees that
lengthy strikes are inevitable if they select the
Union as their collective-bargaining representative.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act.
WE WILL NOT refuse to recognize and bargain
with the Union as the exclusive collective-bargain-
ing representative of our employees in the following
appropriate unit:
All truck drivers, garage mechanics, plant opera-
tors and maintenance employed at our plant in
Reidsville, North Carolina, excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the the Act.
WE WILL, upon request, recognize and bargain
with Chauffeurs, Teamsters & Helpers Local Union
No. 391, affiliated with the International Brother-
hood of Teamsters Chauffeurs, Warehousemen and
Helpers of America, as the exclusive collective-bar-
gaining representative of our employees in the unit
described above, and, if an understanding is
reached, embody such understanding in a written
signed agreement.
AIR PRODUCTS AND CHEMICALS, INC.
356